Townhome Deck Collapse and Responsibility

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Townhome Deck Collapse and Responsibility

Townhome Deck Collapse and Responsibility

Was recently engaged to come investigate a lower level deck that had partially collapsed. The shear attachment at the ledger sheared off with two individuals standing near the patio door. The ledger was attached with concrete nails at several feet OC.

Thankfully the collapse was limited in that the lower level of the deck was only 2' off the ground and the two individuals weren't hurt. I was engaged by the property manager for that address and we decided it was best to do a complete replacement as we found numerous other problems (bad guardrail, 2nd level ledger attachment significantly under strength, main beam undersized, etc). In every way, these decks were built poorly with no adherence to code or even quality craftsmanship taken into account.

The trouble is, this one deck is one of 200 identical decks in this neighborhood.

Following my report, the property manager for this house notified the HOA but was ignored. I followed up with an email and was told the HOA was still controlled by the developer who is also the property manager of the majority of the homes here as well. This developer is also notorious for not following codes and essentially pays for his numerous lawsuits by building new buildings in the area.

Very troubled by the critical nature of the deficiencies in these decks, I reached out to the City inspectors but was told their jurisdiction doesn't extend to this area of the county.

Through a mutual friend, I sent a brief explanation to the County Commission but was also told there was no code enforcement they could offer.

I'm now at a loss for what I am obligated to do (both by code of ethics and a that of a decent person in the knowledge of a bad issue). This concerns me a lot. There are real problems with these decks and it won't be long before a second story portion collapses. And the nature of the neighborhood is such that there are also many families with young children making the burden even greater.

But I'm stuck. The developer is likely to sue me on some frivolous claim if I notify him of anything. But any public notice or such is bound to get noticed by him first. I am not sure it's appropriate to mail a letter to each owner as it seems as though I'm soliciting services. But I'm left with a huge burden to do something to prevent what I am sure will be a bad situation in the future.

Thoughts?

PE, SE
Eastern United States

"If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death!"
~Code of Hammurabi

RE: Townhome Deck Collapse and Responsibility

Not my area of practice, but it is hard to believe the county does not have any building code requirements that cover decks above a certain height (the second story decks).

When we periodically hear of tragedies in this realm it is when someone has a party and there are lots of people on a second story deck (max. capacity), there may be music & dancing (additional stress) and the failure involves lots of victims. With 200 units, this does not seem like a far fetched scenario...more like a "when" than an "if" it happens.

RE: Townhome Deck Collapse and Responsibility

I am curious, is this an issue with the design documents not matching the constructed condition, or are the design documents either calling out insufficient attachment or not specific enough that the connections are "nebulous?" Based on what you have already said, I would think the horse has already left the barn in terms of the contractor/developer suing you for notifying him. Have you talked to your insurance company about this?

Robert Hale, PE

RE: Townhome Deck Collapse and Responsibility

I'd get me a good lawyer and protect yourself as best you can. The county doesn't care, the developer doesn't care (until they can blame you for something) and if you notify the owners, you're likely to involve yourself in ways you can't control.
If this was Star Trek, Captain Kirk would reprogram the software.

RE: Townhome Deck Collapse and Responsibility

Several comments....
1. If you, as a licensed professional engineer, consider the conditions to be a threat to the health, safety or welfare of the public, then you have an obligation to report it. To whom? Tough question. Since there is a Homeowner's Association (even though developer controlled), they need to be notified by YOU....not the property manager, in writing and by certified mail, return receipt. Find out who issued the building permit for the construction....they should be able to enforce code compliance, even if after the fact. If you consider the conditions to be an imminent danger to Life Safety, then go to the county commission again and to the county sheriff or fire marshall.

2. West Virginia subscribes to the International Building Code by state law. The State Fire Commission is responsible for enforcing the code and interpreting conflicts. Contact them and let them know of this issue and that you can't seem to get anyone to heed your warnings.

3. If the county has no building department, the next best thing will be the Public Works director. He/She is likely to be a licensed engineer and will have the same obligations as you to raise the flag.

4. As others have noted, contact your attorney and your state engineering board and copy them on all correspondence.

RE: Townhome Deck Collapse and Responsibility

Also another thought comes to mind here - as this seems to be a public safety issue with "no one at home".

One thing you could do is take the time to compose a letter and go door to door handing it out to the occupants:

Dear Occupant.
I am a licensed Professional Engineer in this state and was recently hired to investigate a deck collapse in your neighborhood. The collapse involved a particular type of connection between the deck and main home structure such that the deck dropped suddenly while persons were standing on it. Fortunately no one was hurt.

It is possible that your deck was constructed from similar plans and details and I am concerned that you may have a potentially unsafe deck that could pose a risk to you or others who use your deck.

As a licensed Professional Engineer, I am obligated, above all other things, to protect the public safety and welfare.
I have attempted to contact various entities and government officials and to inform them of this issue but thought I would also attempt inform the various occupants of homes with decks that were built similar to the one that failed.

I would recommend that you investigate the deck connection, either by yourself, if you feel qualified, or hire a qualified contractor or Professional Engineer.
I am not placing myself in a position to be hired for these inspections as I don't want this letter to be seen as an act of marketing, rather, as a public service under the auspices of my license.

If you, or your hired contractor/engineer have questions about this situation, please have them contact me at xxx-xxx-xxxx and I would be glad to describe to them the conditions that led to the particular deck collapse.

Sincerely,
kilesito

Yes, getting your attorney to review a letter like this might be a good idea. I would just worry that a "typical" attorney would tell you not to as they "typically" don't always and fully understand an engineer's obligation to the public.

RE: Townhome Deck Collapse and Responsibility

I like the idea of a letter to each property owner, but it would likely be more effective if the letter came from a lawyer. Sounds like a good situation for "leaking" your concerns to a class action law firm.

RE: Townhome Deck Collapse and Responsibility

Just another set of eyes here. IMHO, JAE's letter is speculative and inviting trouble. Look at the number of times it uses "possible" and "may have". As an engineer, we can really only comment on things we know. If someone tried to sue you for failing to notify on a structure you didn't even look at, I feel they'd be shot down instantly. By giving a icky squishy letter like this, I think you're going outside of the bounds of what you know.

RE: Townhome Deck Collapse and Responsibility

Quote:

The trouble is, this one deck is one of 200 identical decks in this neighborhood.

So as an engineer who has positive knowledge that an identical deck failed, and that there are 200 identical decks in the neighborhood, and a common developer/builder, but "nobody is home" with regards to inspections, then as an engineer I am OBLIGATED by law to act to protect the public welfare and safety.

In this case, the engineer (the OP above) knows that the other decks are identical...I'm assuming that this would be a development of housing where the same builder, and probably many of the same construction crews, built these decks. Nothing squishy here - just a knowledge that there is a high probability of a safety concern.

In my "squishy" letter I use the word "possible" only once - In the situation described above I would have an opinion that there is a concern.
I use the phrase "may have" only once - in stating that the occupants may have a problem. Yes it is possible that the 199 other decks were built WAY BETTER. I would doubt it, though.

The letter is simply a public duty to save persons from injury or death.

One other note here - you fear that a letter would invite "trouble". As an engineer - despite any trouble - you are obligated to act to protect public safety even if it means you get fired, sued, etc. This is a classic engineering ethics principle.

Fear of trouble is no reason not to act.

I agree with you that we can't (or shouldn't) get sued for buildings that fail that we have no relationship to or have not "seen". However, given the OP's statement that this housing development had 200 "identical" decks, I think it would compel any other reasonable engineer to conclude (as a fact) that the other decks were built the same.

RE: Townhome Deck Collapse and Responsibility

Quote:

So as an engineer who has positive knowledge that an identical deck failed

One deck fails, so the assumption automatically is that 200 more will? That is much like assuming since notification was made and he wasn't hired for the job that no action or notification was made. The OP notified the proper parties to fulfill his obligation, no need to become a social-justice warrior. Many would argue THAT is a far more unethical matter.

RE: Townhome Deck Collapse and Responsibility

Quote:

One deck fails, so the assumption automatically is that 200 more will?

No - only that a definite pattern of construction shows the probability is high that at least one other would fail.

This is no different than a company recalling all of set of products to deal with a possible safety issue (Takata, Cub Cadet, Mazda)

I think most "social justice warriers" are full of ...well. So don't put me with those jokers.

It is never unethical in any way for an engineer to warn others of a safety concern when they have positive evidence that there is a flawed construction condition.
In this case the OP indicates that they have positive evidences that 200 other decks were built by the same developer/builder.

The OP stated that:
1. They contacted the Homeowners Association, (controlled by the developer/builder) with no response.
2. They contacted the county commission with no response.
3. They contacted the city inspectors but found that the city has no jurisdiction.
4. The developer/builder is the property manager of the majority of the homes so has a vested interest (conflict of interest) in NOT responding to challenges to their work.
5. The developer/builder is notorious for not following codes.

So the OP has not really contacted anyone who also has an interest in the public safety & welfare, has authority to do something about it, and who gives a damn.

It would be unethical to stop there and do nothing as a licensed, professional engineer.

RE: Townhome Deck Collapse and Responsibility

It's a good letter JAE... mine would have been slightly different, and, as I suspect Ron's would... but essentially the same. I've copied it and modified it as a template, in case I ever need one like it. I'm a bit of a packrat.

The sad thing is that with all the regulation we are facing that there is no one to address the issue; it's either outside their jurisdiction or they cannot be bothered. Ron posted a couple of good contacts to move forward. Also a matter of advising whoever signed off on the permit.

Dik

RE: Townhome Deck Collapse and Responsibility

JAE and OP, in my experience, townhome projects typically involve numerous subs with numerous crews and the quality of construction is vastly different. Particularly if you have phased construction of the neighborhood. Stating that the construction is IDENTICAL across all 200 units without at least inspecting a representative sample is a weak assumption and speculative. If you'd use the term "identical" in a courtroom, you would be grilled.

RE: Townhome Deck Collapse and Responsibility

I never use the word identical... about 45 years ago I did an engineering report for a lawyer (his house) and his only assurance from the contractor was that it would be constructed identically to another. The lawyer looked at the other...

Problems developed and I was asked to do a report... and the same errors were duplicated in the sample house...

Dik

RE: Townhome Deck Collapse and Responsibility

Forensic - I'm just going by the OP's description of the situation - obviously I'm not there to observe but he statement was definitive that "this one deck is one of 200 identical decks in this neighborhood.".

If there were 200 houses of very similar (identical?) design - I'd doubt that 200 different contractors built them individually - my guess would be that at least one other - and perhaps up to 2/3 may have been constructed by the same general contractor using the same details and same crews.

Similar to this kind of thing:

You are correct that we can't assert that they are all identical. But I would assert that there is a high probability that some of the 200 are identical.

If one deck collapsed then there is a high probability that others (between one other and perhaps up to 50 or more) might be in the same boat in terms of poor workmanship or design.

RE: Townhome Deck Collapse and Responsibility

I agree with JAE....it's an issue in forensic engineering.....it's an issue of extrapolation. I have, on more than one occasion, been accused by opposing parties of "extrapolating data" such as this. We look at the number of subcontractors and their contractors. As JAE notes, if you have 200 of these, there's a high probability (statistically predictable in fact) that many were built the same way, even considering different crews and even different subcontractors. My opinions on these issues have been challenged in depositions and in court and have held.

RE: Townhome Deck Collapse and Responsibility

Maybe the OP can take a 1/2 hour and walk through the neighborhood and actually see if this is an issue before making a speculative statement that has the risk of turning out as a false alarm based on a guess.

RE: Townhome Deck Collapse and Responsibility

Quote:

The OP stated that:
1. They contacted the Homeowners Association, (controlled by the developer/builder) with no response.
2. They contacted the county commission with no response.
3. They contacted the city inspectors but found that the city has no jurisdiction.
4. The developer/builder is the property manager of the majority of the homes so has a vested interest (conflict of interest) in NOT responding to challenges to their work.
5. The developer/builder is notorious for not following codes.

So the OP has not really contacted anyone who also has an interest in the public safety & welfare...

Looks like a load of slanderous assumptions based upon gossip and unnecessary self-importance to me, good luck defending the moral high-horse if that ever comes up in court. There's also a glaring mistake. If you reread the OP:

Quote:

I sent a brief explanation to the County Commission but was also told there was no code enforcement they could offer.

He notified the proper authorities so his obligation is done.

RE: Townhome Deck Collapse and Responsibility

I'm not too crazy about the letters dropped off at each residence idea. It might seem like a solicitation of work (even though it's not) or get lost in the hundreds of emails, letters and notices people get each day. And legally, has he done enough? Is there a follow up? I've been on juries and lawyers can twist the best intended actions into the most horrible sounding things.
One thing I haven't heard suggested is getting the press involved. If you wrote the letters and went over to the local newspaper and brought them a copy of it, they could put the county, the HOA or the developer on the spot. It's a simple enough story that a reporter could get it (mostly) right. I'm assuming that this is a small enough town or city that this news isn't pushing a murder off the front page. I spend time in a smallish town in Wisconsin and there's these level stories every week in the local paper.

RE: Townhome Deck Collapse and Responsibility

He contacted the Homeowners Assoc, the county commission, and city inspectors. Those are not gossip and assumptions - just facts.
The developer/builder as property manager has a vested interest in not responding - again a simple fact...no gossip here.

The fifth item - well, OK, perhaps he's "notorious" and that could be considered "gossip" but item 5 was there to inform the engineer as to probabilities of unsafe conditions - not a vehicle for public proclamation that the develop was a "bad guy".

In it they conclude:In view of such risks, how does one determine whether a particular set of facts creates an ethical obligation to speak out? While it is impossible to offer a single test for situations that are invariably complex, an engineer should consider the following:

1. Degree and likelihood of potential harm: At a distance, almost any engineering matter can be viewed as affecting the "public welfare." An undisclosed use of inferior materials in a business warehouse could result in higher maintenance costs for the business, driving up expenses that are then passed on to the public by way of higher prices. But while even a remote and trivial financial consequence could be described as "public harm," it is not the type of harm envisioned in canon 1's clarion call to hold paramount the health, safety, and welfare of the public. Instead, an engineer should consider the extent to which an undisclosed issue poses a serious risk of injury or loss.

2. Level of certainty: It goes without saying that there are many cases in which absolute certainty is impossible, and some of the most notorious engineering failures have involved a failure to act in the absence of irrefutable proof, the space shuttle Challenger being a prime example. However, as set forth in various ethical codes, the obligation to report involves the use of "judgment," "knowledge," and "reason," implying more than a simple feeling or unsupported suspicion of wrongdoing. A good rule of thumb is the reasonable person standard: does the engineer possess sufficient evidence or documentation of a situation that a reasonable person would view as constituting a threat to the public?

3. Exhaustion of other avenues: Before taking his or her concerns to an outside authority or public forum, it is essential for the engineer to explore all available means of resolving the issue by dealing directly with the source. In keeping with an engineer's duties to employers and clients, ASCE's code and other codes stipulate that an engineer must advise employers and clients of the consequences of an ill-advised decision. If an immediate supervisor or manager is unreceptive, the engineer should first consider all other lines of authority within the organization or agency, including internal ethics hotlines or reporting mechanisms and approaches to board members or stockholders.

As a practical matter, any engineer considering whistle-blowing or similar action may wish to first consult an attorney to explore the legal risks and protections related to such an action and to formulate an overall strategy for dealing with untoward consequences. Ultimately, however, the decision of whether to speak out or blow the whistle on a possible threat to the public will be deeply personal. The engineer will have to consider his or her responsibilities to the public and to clients or employers and to fully understand the consequences not only of speaking out but also of remaining silent.

RE: Townhome Deck Collapse and Responsibility

Actually JAE that list was full of assumptions and gossip. Per the list above:
1a. Assumes the HOA will respond to unsolicited input to private matters that dont concern the OP. Highly unlikely IME but regardless, still an assumption.
b. Mentions the developer's "control" of the HOA based upon gossip from a property manager who may not even live in the neighborhood.
c. Assumes nobody else at the HOA does their diligence regarding HOA business, communications, etc.
4. Based upon gossip from the same single individual who may not live there, assumes the developer controls the majority of the properties with little/no oversight from the actual owners. Highly unlikely IMHO.
5. Based upon third-party gossip assumes the developer is an unethical POS.

JMO but I dont see any evidence giving reason to doubt the ethics of the developer as the arguments for doing so are based mostly upon gossip and assumption.

RE: Townhome Deck Collapse and Responsibility

Often condominium board members are not even residents... The object of the exercise is to inform essential people... it doesn't matter if its unsolicited or if they do nothing... if they do nothing and someone is injured, then, it makes for a far more interesting court case.

Dik

RE: Townhome Deck Collapse and Responsibility

CWB1
OK - I'm not here saying that I know for certain that these decks are definitely built poorly. The OP more than once asserts that these decks (plural) have problems. So all my comments were based on the assumption that more than one deck had problems. Based on that FACT I still assert that some action is required by a licensed engineer beyond an email or two.

RE: Townhome Deck Collapse and Responsibility

....just to further clarify - the OP asks what their ethical obligation is based on the assumption that the OP knows, by proximity, inspection of next door decks, etc. that there is indeed strong evidence that other decks are a problem.

What I seem to be hearing from others here is that even with the assumption that there are decks (plural) that have issues, and the OP knows that there are issues - we would not do anything as a licensed engineer but simply walk away - not our problem - let others get injured by falling decks - I've done my duty by throwing a few emails out there.

Sorry - that doesn't correlate at all with most engineering ethical requirements.

Now if there are 199 other decks that are just fine, and the OP doesn't have a clue whether there are other problems or not, then perhaps walking away is not unethical. But that wasn't the scenario that the OP presented us with.

RE: Townhome Deck Collapse and Responsibility

Had I found the first one, I'd have approached a neighbour with a similar style house and deck and explained that I was looking at a deck in the neighbourhood and wanted to check another one that was similarly constructed. I wouldn't have explained the failure, but, wanted to see how they were generally constructed. I would not have alarmed the neighbour. Once I saw that construction was similar (so there's a bit of a pattern) I would then have approached the authorities involved. I likely would have taken a cursory look at a third deck.

Dik

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